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    August 15, 2007

    Gravel vs. Hillary on states' rights

    Posted by: Chris

    Hillarygravel Who would have thought the 2008 presidential campaign would feature, even for a millisecond, a dust-up between Hillary Clinton and Mike Gravel over states' rights. But here we are.

    Gravel has penned an op-ed in Huffington Post blasting Hillary for saying during last week's Human Rights Campaign-Logo debate that marriage is an issue appropriately left for the states to decide. Writes Gravel:

    By drawing upon the language of states rights, Hillary embraces the tradition of John Calhoun and the defenders of slavery along with Strom Thurmond and the segregationists.  Throughout our nation's history,  every time national public opinion turns against oppression, opponents of progress use states rights to present themselves as defenders of liberty in the face of federal power.

    States rights has always been the last refuge of the bigots.  Now Hillary has given rhetorical cover to the homophobes.  If she wins the Democratic nomination, opponents of gay marriage will cite her statement to justify their opposition to national marriage equality over the next decade.

    Gravel's history lesson is correct, even if it's a bit out of context in the debate over marriage. It has been interesting, indeed, to watch Democrats retreat to states' rights as a way of avoiding federal action on the gay marriage issues, even as Republicans abandon a long history of states' rights devotion to propose a "federal marriage amendment" that would take the issue away from the states to decide.

    But it's simplistic to suggest, as Gravel does, that any recourse to states' rights amounts to abandoning a federal civil rights commitment. Our federal system properly leaves some issues for the states to decide, whether because they are better if reflective of local values (admittedly a bit of a wormhole there) or because states can more easily experiment with policy and arrive at a variety of policy solutions that each can be judged later on how they've performed.

    Gravel should remember that if marriage were a federal issue, then gays would have no place in the U.S. to marry. The landmark Massachusetts high court ruling in 2003, and the Vermont, Hawaii, New Jersey rulings before and since, would have been impossible if the issue were merely one for the (more conservative) U.S. Supreme Court to decide. Bush vs. Gore anyone?

    If Gravel is harboring the illusion that the president and Congress could simply decide the gay marriage issue on their own, he's most likely wrong. Congressional power is limited to clauses in the Constitution that give the federal government limited powers to legislate. Everything not listed is reserved for the states.

    The federal government has gotten away with passing a whole host of laws the Framers probably didn't intend by arguing that the issue impacts "interstate commerce," one of the Constitution's  enumerated powers. But the Supreme Court struck down a gun control law a few years ago that tried that argument, and any effort to legislate marriage, an issue long left to the states, would no doubt be challenged on similar grounds.

    Gay couples are already learning how our patchwork legal system, with some states offering some rights and some offering others, can wreak havoc on stability and protections. But we are still in the early days of mapping out a solution -- especially one that has a prayer of passing Congress. The Defense of Marriage Act, which allows one state to ignore another state's marriage licenses if issued to gay couples, only exacerbates that problem (and is probably unconstitutional on its own right).

    We are still a long way from uniform rights to gay marriage, like exist in Canada, South Africa and several European countries. I would be the first to argue that the Constitution really does require such uniformity, because any state law depriving gay couples of the rights and responsibilities of marriage violates the Equal Protection Clause. But a win on that point, which is unlikely with the current Supreme Court, would no doubt be followed by a (probably unstoppable) push for a federal marriage amendment.

    So Gravel can score some cheap debate points by lecturing Hillary about states rights and marriage. And he's right that she has retreated to that rationalization to avoid her own responsibility to stand up for full equality for gay couples. But the reality is we need for marriage to remain a states' rights issue, at least until we have the public support to block a constitutional amendment that would set us back decades.

    For a complete news summary on gay issues in the presidential campaign, visit www.gaynewswatch.com/whitehouse08

    For a complete news summary on gay marriage, visit www.gaynewswatch.com/marriageequality



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    1. Andoni on Aug 15, 2007 5:00:26 PM:

      Gravel is doing what any good second (or third) tier candidate should do …….saying something or doing something to get noticed. And I would say that with his blog being linked all over the gay media, that he was very successful.

      The fact of the matter is that even if Kucinich or Gravel become president, there isn’t much thy can do to create marriage for gays. Chris is right, marriage has historically always been determined by the states. States give out the marriage licenses, not the federal government. The federal government (as well as other states) then decide whether to recognize the marriages of a given state. Currently DOMA says the federal government will not recognize same sex marriages and also says that one state doesn’t have to recognize the same sex marriage from another state.

      If people think through what Obama said at the HRC/LOGO forum, they would see that he will get us as close to gay marriage at the federal level as can be gotten under the federal system we have. The federal government cannot create gay marriage, but it can recognize it if any state approves it. Obama would eliminate the federal impediments to that recognition.

      Currently DOMA prevents the federal government from recognizing Massachusetts marriages (and any other state that might follow MA) for the 1200 benefits the federal government confers with marriage. The two points Obama makes on gay marriage are that he would repeal DOMA (all of it) so the federal government would then recognize gay marriages as each state begins approving gay marriages, and he would propose legislation that would confer the exact same 1200 federal benefits of marriage to those couples who live in states that issue civil unions instead of marriages. I believe he is also proposing federal civil union legislation for people in those states that don't have civil unions.

      That’s about as good as it can get in the near future. No president can issue gay marriage licenses or force creation of a federal gay marriage license.

      It will take the US Supreme Court or Congressional legislation to force states that don’t have gay marriage or civil unions to recognize marriages or civil unions from the states that do. After that happens the road to full marriage equality will be very easy.

    1. Alan Down In Florida on Aug 15, 2007 10:59:12 PM:

      It will take the Supreme Court to legalize gay marriage and it will be under the precedent of Loving v. Virginia in which the court ruled that the choice of a person's partner in marriage is a basic human right and therefore, if the partners were of different races it was not up to the government to prevent it. With a Democratic majority (which there is NOT currently) there is no way to interpret that ruling in any way as to exclude same-sex marriage from being protected under the same logic.

    1. Citizen Crain on Aug 16, 2007 2:31:55 AM:

      I don't think so, Alan. I think the repeal of DOMA is the more likely avenue to bring about gay marriage uniformly nationwide. If DOMA is repealed in full, as Obama (but not Hillary) supports, then each and every state would have to recognize marriage licenses issued to gay couples in Massachuesetts or any other state.

      Given mobility, that would essentially allow gay couples anywhere in the U.S. to travel to Massachusetts, marry, and return home the same as if they'd married there.

      Even with DOMA's repeal, there will likely be litigation over the "full faith and credit clause" of the Constitution, which requires states to give legal effect to the documents of other states. The Supreme Court has recognized a "public policy" exception to that requirement.

      So the Supreme Court may take the gay marriage question that way. Ruling in favor of requiring full faith and credit would be much less explosive than ruling, as Alan would have it, that equal protection renders invalid state hetero-only marriage laws.

      Ultimately, however, it's all nullified by a federal marriage amendment. So don't expect and movement by gay activists (or their clued-in allies -- Gravel excepted) from the states rights line. Until such time as they believe the risk of such an amendment is minimized.

    1. Alan Down In Florida on Aug 16, 2007 11:18:26 AM:

      While I agree the repeal of DOMA will be helpful it will not take matters out of state hands. Even Massachusetts' law requires residency among other requirements. The repeal of DOMA will not allow a stream of marriage-minded individuals to pour into Massachusetts to wed. That would require a rewrite of the state's law - which we know is still under attack and can be challenged at any time.

      Ultimately, the winning of this war will take another 15-20 years as its major opponents die off and the younger, more tolerant generation becomes an electoral force. Despite our impatience this organic "revolution" is probably the wisest choice because it comes from the grassroots and doesn't smack of having morality imposed on people.

    1. Citizen Crain on Aug 16, 2007 4:43:26 PM:

      You're right about the 1913 residency law but the governor and state legislative leaders have already said they're willing to repeal it, so only a matter of time there. I disagree strongly that this fight will take 15-20 years. I think it will be decided, and in our favor, within 5-10.

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